The opinion of the court was delivered by: Susan Illston United States District Judge
ORDER DENYING MOTION FOR RECONSIDERATION OF MOTION FOR AMENDING JUDGMENT AND COMMITMENT ORDER.
On December 17, 2004, defendant brought a "motion for order amending judgment and commitment order, in regards to an unlawful fine that should be removed or dismissed." By order filed January 3, 2005, the Court denied defendant's motion for untimeliness under 28 U.S.C. § 2255. Defendant thereafter filed a motion for reconsideration in which he contends that the Court wrongfully characterized his December 17, 2004 motion as one for habeas relief under 28 U.S.C. § 2255 and that the court should instead have evaluated his motion under the terms of a previous version of Fed. R. Crim. P. 35(a) ("Old Rule 35(a)").*fn1 The Court finds that defendants' December 17, 2004 motion was properly characterized and dismissed in the January 3, 2005 order; therefore, the Court denies the current motion.
Regardless of how a federal prisoner identifies his motion, it is construed as a § 2255 petition if it challenges his conviction or sentence. See Tyler v. United States, 929 F.2d 451, 453 n.5 (9th Cir. 1991). Defendant asks the Court to dismiss or vacate the fine imposed upon him for violation of 21 U.S.C. § 963 because it was not charged in conjunction with the underlying substantive offense. In addition to denying defendant's motion for the same reason expressed in the January 3, 2005 order, the Court finds that defendant's argument amounts to a collateral attack on his conviction. It is the same argument raised and rejected in defendant's September 11, 2002 "Motion to Correct an Illegal Sentence." (Docket #954). Defendant's motion, therefore, is a successive petition for writ of habeas corpus under § 2255 because it makes the same argument raised and rejected in a prior petition. United States v. Allen, 157 F.2d 64, 66 (9th Cir. 1998) (a ground is successive if the "basic thrust or gravamen of the legal claim is the same."). Defendant's only opportunity to collaterally attack his conviction expired with his first petition filed in 1992.
Defendant nevertheless argues that the Court should not have construed his December 17, 2004 motion as a petition for habeas relief under 2255 without first providing him certain warnings. For this proposition, defendant relies on Castro v. U.S., 540 U.S. 375 (2003), and U.S. v. Seesing, 234 F.3d 456, 464 (9th Cir. 2000). In Castro, the Court determined that pro se defendant's motion for a new trial could not be characterized as a § 2255 motion without first notifying defendant of its recharacterization and of the consequences it would have on subsequent § 2255 motions. Castro, 540 U.S. at 383. Similarly, the appeals court in Seesing determined that defendant's pro se letter denying the court's jurisdiction could not be treated as a first § 2255 motion. Seesing, 234 F.3d at 463. In both cases, the concern was that the defendant would lose his only opportunity to file a first § 2255 motion. This concern is absent from the present case. Defendant has already filed a § 2255 petition, which was addressed on the merits and rejected. See Echavarria-Olarte v. Reno, 35 F.3d 395 (1994).
Even if the Court were to consider defendant's motion under the terms of Old Rule 35(a), defendant's argument is still lacking in merit. The crux of defendant's argument is that the fine is unlawful because his § 963 violation was not "charged in conjunction with [the] underlying substantive offense statute." Mot. for Order Amending Judgment at 4. For this proposition, defendant relies on Albernaz v. U.S., 450 U.S. 333 (1981), and U.S. v. Cecil, 608 F.2d 1294 (9th Cir. 1979). The cited authority, however, does not support defendant's proposition. The court in Albernaz, in looking at consecutive sentences for various conspiracy charges, determined that § 963 authorizes a sentence that does not exceed the penalties specified for the substantive underlying offense. Albernaz, 450 U.S. at 335-36. In Cecil, the court reversed appellants' convictions because the indictment was insufficient to afford adequate notice of the charges against appellants. Cecil, 608 F.2d at 1296-97.
Here, the indictment that issued against defendant expressly states on the first page that one of the charges was for violation of "Title 21 United States Code, Section 963 -- (Conspiracy to Import Cocaine)." Dec. 13, 2004 Mot., Ex. 2. The indictment, therefore, sufficiently gave defendant notice of the pertinent charge against him and referenced the substantive underlying offense to which the § 963 charge referred. In addition, defendant does not argue that the $100,000.00 fine exceeds that which may be imposed for the offense of cocaine importation. Defendant, therefore, fails to demonstrate that the imposed fine is illegal within the meaning of Old Rule 35(a).
More importantly, defendant's argument -- that a violation under 21 U.S.C. § 963 must be charged in conjunction with an underlying substantive offense to become an offense against the United States -- is patently wrong. It is well settled that the law considers conspiracy and its underlying substantive offense as separate crimes. Iannelli v. U.S., 420 U.S. 770, 777 (1975); see also Pinkerton v. United States, 328 U.S. 640, 644 (1946); Braverman v. United States, 317 U.S. 49, 53 (1942). In addition, conspiracy to do an act may carry a separate sentence. Iannelli, 420 U.S. at 777-78; Callanan v. United States, 364 U.S. 587 (1961); Carter v. McClaughry, 183 U.S. 365 (1902).
Accordingly, the Court DENIES defendant's motion for reconsideration.